Literary Review of Canada Online - Friction over Fan Fiction
Undaunted by this, Rebecca Tushnet, a professor of law at Georgetown University, and a keen fan fiction writer herself, wants to take fan fiction out of the legal shadows where it has operated, more or less at sufferance, for decades, and carve out a legal place for it within the US doctrine of fair use. She has recently helped found the Organization for Transformative Works, with the mandate to establish fan fiction within the parameters of legal, non-infringing use.
Tushnet argues that the writing of non-commercial fan fiction is fair use. Fair, because it takes the source material as raw material and creatively transforms it in ways that copyright law is meant to encourage – for example, by expanding covert meanings perceived to be present or implicit in the original text, presenting new interpretations and viewpoints, or reflecting critically on the original content – and because it is extremely unlikely to substitute economically for, or damage the market of, the original work. “Like a book review that quotes a work in order to criticize it, a retelling of a story that offers the villain’s point of view or adds explicit sexual content can be a transformative fair use,” she maintains.
But there is an opposing view that considers fan fiction to be insufficiently transformative. Although the characters may be harnessed to a different story vision, or even set in an alternative universe, fan fiction is essentially a narrative reworking with key fictional elements of the original; a derivative work, not a critical work, unlike a book review. In this view, copyright owners are entitled to protect their characters against fans’ distortions.